LEGCO Paper No. CB(2) 86/96-97
(The minutes have been seen by the Administration)
Ref : CB2/BC/42/95/S2
Bills Committee on the
(No. 2) Bill 1996
Minutes of the Third Meeting held on Monday, 16 September 1996 at 10:45 a.m.
in Conference Room B of the Legislative Council Building
Hon Emily LAU Wai-hing (Chairman)Members Absent
Hon Howard YOUNG, JP
Hon LEE Cheuk-yan
Hon IP Kwok-him
Hon James TO Kun-sun ]away from Hong KongPublic Officers Attending
Hon Ronald ARCULLI, OBE, JP*
Hon CHENG Yiu-tong ]other commitments*
Hon Albert HO Chun-yan*
Hon Bruce LIU Sing-lee*
Staff in Attending
- Ms Ingrid HO Pui-yan
- Principal Assistant Secretary for Security
- Mr Vidy CHEUNG
- Senior Crown Counsel
- Mr LAI Tung-kwok
- Assistant Director of Immigration (Acting)
- Mr YIM Kwan-hoi
- Principal Immigration Officer
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
- Mr Paul WOO
- Senior Assistant Secretary (2)5
I.Matters Arising from the Last Meeting
The Immigration Department's telephone hot-line and the system in keeping records of enquiries
To follow up on the discussion at the last meeting, Mr YIM Kwan-hoi informed members that whenever a call was made from an employer to the telephone hot-line of the Immigration Department (the Department), the officer handling the enquiry would record the details in a standard information sheet. The record would include such information as the name of the person making the enquiry, the name of the officer answering the call, the content of the enquiry as well as the actions taken on the enquiry etc. At the end of the conversation, the officer would verbally inform the enquirer of the official reference number as regards the latter's enquiry. The relevant information would also be entered in a master register which was kept separately from the individual information sheets. These documents would be kept for five years. For enquiries directed to the hot-line after office hours, the calls would be tape-recorded and answered by Immigration Officials on the following day.
2.Mr IP Kwok-him suggested the Department issue a written acknowledgement, with the relevant reference number, to the enquirer each time an enquiry was received, or alternatively to tape-record the full content of every enquiry. This might help avoid possible disputes between a person, for example an employer, and the Department as to whether the former had made an enquiry to the Department for advice on employment matters. Mr LAI Tung-kwok and Mr YIM Kwan-hoi responded that given the large number of telephone calls, which amounted to nothing less than 100 daily, these proposed measures, if adopted, would give rise to considerable additional workload for the Department. Since details of the callers such as their names and addresses had to be taken down for issuing replies, more time would be spent on handling the enquiries and therefore more manpower resources were required. As regards tape-recording all enquiries, the need to install audio recording facilities for the purpose and to find means to store large bulk of audio tapes would also involve serious resource implications. Mr LAI remarked that under the present enquiry system, there were well-established internal guidelines and instructions for the staff to follow, and close supervision was in place. With regard to record-keeping, he said that the information was easily retrievable and so far there had been few complaints from the public. Mr LAI added that in the case of a defence in prosecution where an employer alleged that he had sought the prior advice from the Department as regards the legal requirements, the duty on the defence was to prove on the balance of probabilities, which was an easier standard of proof, that he had made the enquiry. Senior Assistant Legal Adviser agreed.
3. Mr LEE Cheuk-yan and Mr Howard YOUNG opined that it might not be necessary in the present circumstances for the Department to reply in writing to all enquiries, or to tape-record these enquiries. Mr LEE said that it was unlikely that the court would need to consider, in determining a statutory defence, whether the employer had made an enquiry to the department, since there existed other tests to decide if the employer had taken "all practicable steps" in the particular circumstances of the case. Mr YOUNG noted that the majority of the enquiries would involve only people seeking advice on simple issues where the chance of a dispute was not great. Ms Ingrid HO echoed that the Administration had been aiming at prevention of violation of the law. Prosecution action had been targeted principally at serious breaches with a view to achieving deterrent effect.
| 4. Upon deliberation, the Administration agreed that a written reply would be provided by the Department only if it was so requested by the caller. In these cases, the caller should make the request in writing and the Department would reply in writing in due course.
Prosecution against employment agencies
(LegCo Paper No. CB(2) 2114/95-96)
5.Introducing the information paper provided by the Administration and circulated to members vide LegCo Paper No. CB(2) 2114/95-96, Mr YIM Kwan-hoi advised that prosecution had been taken against six employment agencies this year for arranging false contracts for foreign domestic helpers (FDHs) or aiding and abetting the breach of condition of stay. Three of these cases resulted in convictions and the others were awaiting trial. Of the former ones, the proprietors/managers of the agencies were convicted of arranging false contracts for FDHs to take up unapproved employment or part-time employment. The cases were tried at the District Court and heavy penalties were imposed, including imprisonment in two cases. Mr YIM added that consideration was being given to institute prosecution against two more agencies. The number of prosecutions since January this year was on the whole comparable to the corresponding figures for the past years.
6. Responding to the issue of part-time employment of FDHs raised by Mr Howard YOUNG, Mr LAI Tung-kwok affirmed that such employment was illegal. He said that the Department was aware of the fact that notices advertising the hiring of FDHs on part-time work had occasionally been found in places like supermarkets. He stated that the Department had advised the management of the establishments concerned against the putting up of such notices.
7. Mr LEE Cheuk-yan said that while there was a market demand for part-time domestic helpers, and probably a good supply of local people who were looking for such work, FDHs had a good communication network and thus stood a better chance to find such work. The lack of an effective mechanism to facilitate an efficient flow of information on job opportunities among local workers could be a major reason that locals could not find part-time domestic work. He opined that the Employees Re-training Board and employment agencies could play a more active role in the areas of training, promotion and job-matching. He said he would explore ways to help bring about improvements to the situation.
Application of section17I of the Immigration Ordinance (the Ordinance) to contracts for service
8.The Chairman informed members that no information on the court ruling as asserted by Mr James TO Kun-sun was available as he had been away from Hong Kong. A reply from Mr TO was awaited.
Examination of the two Court of Appeal rulings discussed at the meeting on 2 September 1996
9.Members had no further points to raise in respect of the two court judgments, namely R v Shun Shing Construction and Engineering Co. Ltd.  1HKCLR 69 and R v HUI Wai-man  2HKC 441.
II.Clause-by-clause Examination of the Bill
Clause 2 - section 17G(2)(a) of the Ordinance
10.Ms Ingrid HO advised that the purpose of re-defining the meaning of a "lawfully employable person" under this part was to correct the anomaly in existing provisions under which persons holding a Hong Kong Identity Card (HKIC) are lawfully employable even though they were in breach of condition of stay by taking up unapproved employment. These persons would become not lawfully employable upon the passage of the proposed amendment.
Clause 3 - section 17J(1)(a)
11. Ms Ingrid HO stated that the proposed amendment imposed an obligation on employers to inspect the valid travel document of any person who was not a Hong Kong permanent resident before entering into a contract of employment with such person. The inspection would allow employers to examine the restrictive conditions of stay stipulated on the travel documents.
12. In reply to Mr LEE Cheuk-yans enquiry on the progress of issuing W-prefix HKICs for FDHs, Ms Ingrid HO stated that the Administration had yet to decide the feasibility to launch a full-fledge renewal exercise, having regard to the operational and resource implications. In addition, the Department had no legal authority to order surrender of the HKICs presently held by FDHs. Since late last year, the Department had been issuing W-prefix HKICs to those FDHs entering Hong Kong for the first time or who applied for a replacement of their original HKICs. Ms HO said that if a one-off attempt to issue FDHs with the W-prefix HKICs were to go ahead, it would take two to three years to complete the exercise.
13.Ms Ingrid HO further stated that, in order to help employers identify more easily the restriction on the employability of a foreign worker, a bilingual immigration stamp would be put on the travel documents of FDHs and imported workers. The stamp showed clearly that the holder of the document was only allowed to work for a specific employer under a specific contract, with the name of the employer and the contract number stated thereon, and that change of employment was not permitted. This bilingual stamp would be put on the travel documents of the workers upon their first entry into Hong Kong or when they applied for an extension of stay. Mr LAI Tung-kwok added that this process of imposing the bilingual stamp had been put into practice since May this year. By May 1997 all these workers would have the new stamp on their travel documents because foreign workers normally had to apply for extension of stay after a period of 12 months.
14.Referring to members enquiries, Ms Ingrid HO and Mr LAI Tung-kwok further clarified that section 17J(1)(a) covered all workers who were not permanent identity card holders and who did not have the right of abode in Hong Kong. These employees included British citizen passport holders who were on a limit of stay and foreign expatriates who were subject to a restrictive condition of stay. Any prospective employer of these persons would have to check their valid travel documents as required under the proposed section.
15.Ms Ingrid HO stated that a series of promotional activities to publicize the new legislation, such as TV Announcements of Public Interest and briefings to the relevant organisations etc., would be carried out after the passage of the Bill.
16.The Chairman advised that, should there be no further queries by members, a report of the Committee would be submitted to the House Committee at its meeting on 27 September 1996 to recommend the resumption of the Second Reading debate on the Bill at the LegCo Sitting on 9 October 1996. The deadline for submission of proposed Committee Stage amendments would be 30 September 1996.
17.There being no other business, the meeting ended at 11:50 a.m.